“Unprecedented” is the buzzword for 2020, a year that has seen monumental upheaval. Which makes it refreshing to be able to say that when it comes to performance management, the rules haven’t changed! Nonetheless, the reality of living with the COVID-19 crisis brings its own challenge. By Victoria Comino and Rob Jackson.

Before you take a business-as-usual approach to managing an underperforming member of your team, consider this: what expectations can you, as an employer, reasonably have of a worker who is working from home with children underfoot, or being checked for a permit en route to work, or simply struggling with the mental load that has been dished up by 2020?

When an employer manages a worker’s performance, it needs to be reasonable both in terms of the expectations that are being set, and the process that is followed. This is because ultimately, the risk is that you have to dismiss an underperforming employee.

At that point, if the worker files an unfair dismissal claim, your entire process will be under scrutiny. A Fair Work Commissioner will assess whether you had set and communicated clear and reasonable expectations, whether the worker was warned about their performance, whether they had a reasonable opportunity to improve, and whether the dismissal process was fair.

After considering those factors (and anything else it considers relevant) the Commissioner will decide whether the dismissal was harsh, unjust or unreasonable. Make no mistake, a Commissioner can decide that the worker was underperforming and that you had a valid reason to dismiss the worker, but that in the extraordinary circumstances, the dismissal was too harsh, or was unreasonable.

Your worker might be awarded lost earnings or get their job back or a combination of both.

This means that when you are addressing underperformance you need to give active consideration to the causes of the underperformance. For example:

  • Are the extraordinary circumstances of 2020 contributing to the problem, or not?
  • If the worker is working from home, are factors such as home schooling, poor internet connection and/or mental health contributing to the performance issue?
  • Are there steps that you can take to help improve the situation? Reduced hours? A compressed working week? Altered working times? Provision of a dongle?

Ask the worker what is contributing to the problem, and if there is any support the employer can provide.

If you as an employer take these steps, it does not mean you are obliged to provide everything the worker asks for. What it does mean is that you, the employer, will be better placed to prove to the Commission that you did tried to look to the source of the performance issue, rather than proceed to a warning or dismissal. Your hands are not tied, and you do not have to tolerate poor performance. It is important to realise there is a balance and, in many cases, you can’t apply the same criteria as you would have done this time last year.

Employers must also give careful thought to the process followed. In these times of social distancing and working from home, many performance discussions are being held over the phone or video conferencing.

Note: in most cases, a purely written process should be avoided. If you need to have a formal performance management discussion with a worker, and if it can’t be face to face, video conference is next best option. Give the worker notice that it will be a performance management meeting so that they can arrange to have a support person with them if they want to, or so that they can arrange to be in a quiet place instead of the kitchen table with their housemates listening in.

After the discussion has occurred, the usual process should still apply. Employers must confirm the warning in writing, including the agreed timeframes for improvement and review, and that failure to improve may result in termination of employment. The employer must ensure they provide any agreed support and reviews should occur as scheduled.

Performance management is tricky, even at the best of times. And, in 2020 it requires an employer to consider a few additional matters.

Victoria Comino is a Special Counsel – Workplace Relations at AMTIL corporate partner Rigby Cooke Lawyers. Rob Jackson is a Partner – Workplace Relations at Rigby Cooke Lawyers. Rigby Cook Lawyers Workplace Relations team is well placed to advise on all aspects of Performance Management.